Sexual Harassment
What You Need to Know
Tracey B. Eberling
Steptoe & Johnson PLLC
Harassment: It’s Not Just
About Sex Anymore
Sexual/Gender
 Race
 Disability
 Age
 National Origin
 Religious
 Other

Purpose of Training
•
Types of discrimination and harassment
•
Ways to minimize the risk of liability
•
Workplace free of unlawful harassment
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Where’s it coming from?
Title VII of the Civil Rights Act of 1964
 Age Discrimination in Employment Act
 Americans With Disabilities Act
 West Virginia Human Rights Act

Federal Discrimination Laws
Title VII of the Civil Rights Act of 1964
Makes it unlawful for an employer to fail or refuse to hire
or discharge any individual, or to otherwise discriminate
against any individual with respect to:
•
compensation, terms, conditions, or privileges of
employment
•
because of such individual’s race, color, religion, sex, or
national origin
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West Virginia Human Rights Act
The West Virginia Human Rights Act prohibits
discrimination and harassment on the basis of:
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Race
Religion
Color
National Origin
Ancestry
Sex
Age (40 and above)
Blindness
Disability
Individual Liability
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Pretest

Can an individual invite someone who
reports to them for coffee or lunch? What
about a date?

Can an individual invite a peer for a date?

Can an individual comment to a co-worker
about physical appearance?
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Pretest

Am I creating a hostile work environment
if I talk about the Howard Stern Show?
Jersey Shore?

Can an individual ask a co-worker about
his/her sex life?
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Pretest

Can an individual ask a subordinate what
she/he is planning to do for an upcoming
religious holiday?

Out of concern for an employee, can an
individual suggest that the employee retire
because she/he is getting old and the
employee doesn’t need the aggravation?
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Types of Sexual Harassment

Quid Pro Quo

Hostile Environment
What is Harassment?
Off-color remarks, jokes
• Offensive or derogatory comments
• Verbal or physical conduct
•
•
based on an individual's protected
constitutes unlawful harassment,
status
•
if the conduct creates an intimidating, hostile, or
offensive working environment or interferes with
the individual's work performance.
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What is Sexual Harassment?
•
Unwelcome sexual advances, requests for sexual
favors;
•
Offensive verbal, visual or physical conduct of a sexual
nature;
•
Any harassing conduct, even conduct of a non-sexual
nature-directed at someone because of his or her sex
That explicitly or implicitly affects an individual's employment,
unreasonably interferes with an individual's work performance, or
creates an intimidating, hostile, or offensive work environment.
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Quid Pro Quo
Latin meaning “This for that.”
 Put out or get out

What is it?

Unwelcome sexual advances, requests for
sexual favors, and other verbal or physical
conduct of a sexual nature when:
– Submission is made a term of employment
– Submission/rejection used as basis for
employment decisions
– Conduct unreasonably interferes with work
performance or creates an intimidating,
hostile or offensive working environment
Hostile Environment
Offensive conduct of a sexual nature or based
on victim’s gender
 Unwelcome
 Severe and/or pervasive nature
 Creates a hostile, offensive or intimidating work
environment
and
Alters a term, condition, or privilege of
employment

Offensive Conduct
Verbal: profanity, lewd jokes, derogatory
terms, propositions, sexual banter
 Physical: pinching, fondling, assault
 Demonstrative: sexually oriented
calendars, cartoons, and objects; indecent
gestures
 Other: threats and sabotage

Hostile Work Environment
• Unwelcome or improper touching or statements of a sexual
nature
• Requests for sexual favors
• Displaying or circulating pornographic material or literature—
watch your email!
• Discussing details of your or someone else’s intimate personal
relations
• Teasing an employee about his or her sexual activities, marital
status or physical appearance
• Sexual/Racist, other bigoted jokes, off-color jokes or humor
• Persistently seeking a “date” or other social relationship with an
employee who has expressed disinterest in such a relationship
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Unwelcome Conduct
Consensual joking and touching is not
harassment if it is neither unwelcome
nor offensive to the persons involved.
 No means NO!
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Severe or Pervasive

Three factors considered:
– Frequency of the conduct
– Severity of the conduct
– Effect upon the victim’s work
More severe requires less frequency
 Roll the dice with the jury
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Who is the harasser?
Superiors
 Co-workers
 Clients or customers
 Vendors
 Contractors or consultants
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Harassment Scenarios
Men harassing women
 Women harassing men
 Same-sex harassment
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Same-Sex Harassment
Gender hostility between members of the
same sex
 Homosexuality not required
 Horseplay
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Employee Responsibilities
Make it clear to co-workers when conduct
is unwelcome
 Ask yourself: Would I say or do this if my
spouse, parent, or child was present?
 Use your employer’s complaint procedure
 Cooperate in investigations

Employer Responsibilities
Have a policy prohibiting harassment
 Let employees know about the policy
 Have a complaint procedure
 Promptly and thoroughly investigate
complaints
 Take effective remedial action if
harassment is substantiated

Model Harassment Policy
Sexual harassment, as well as harassment
based upon other protected
characteristics, is strictly prohibited
 Discipline up to and including termination
for substantiated claims or false claims
 Consensual relationships unwise
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Harassment Policy MustHaves

Explain prohibited conduct
– Prohibit harassment based on protected
characteristics
– Harassing behavior WON’T be tolerated in
ANY form
More….
Reports by victims or witnesses
 Report incident to Designated Person

– If Designated Person is involved, report to
another Designated Person (or Position)
Prompt and thorough investigation will
follow
 Disciplinary or corrective action will be
taken as appropriate
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Harassment Policy MustHaves

Reporting Process
– Clear reporting process
– Dual reporting
 E.g., report harassing conduct to supervisor or
Human Resources
Harassment Policy
Harassment Policy MustHaves

Reporting Process
– Clear reporting process
– Dual reporting
 E.g., report harassing conduct to supervisor or
Human Resources
Harassment Policy
Harassment Policy MustHaves

Retaliation
– Employees who report harassment won’t be
retaliated against
– Won’t be retaliated against for reporting
harassment or assisting in investigating
another person’s report
Harassment Policy MustHaves
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Confidentiality
– Be careful here!
– Reports will be kept
confidential to the extent
possible
– Some circumstances require
disclosure
– No confidentiality guarantees
– could violate NLRA
Harassment Policy MustHaves
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Investigation
– Assure employees there will be a prompt,
thorough, and impartial investigation
– Will take corrective action if harassment
occurred
– Could be terminated
Employer Liability
For Harassment by Co-workers: where the
employer knew or should have known of the
conduct or expressly/implicitly authorized or
ratified such conduct
 For Harassment by Supervisors:
employer
responsible regardless of knowledge or whether
the acts were authorized or even forbidden
 For Harassment by Non-employees:
where
employer knew or should have known and failed
to take corrective action

Affirmative Defense
Exists under federal law; WV remains to
be seen
 Two elements:
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– Employer exercised reasonable care to
prevent and promptly correct any harassing
behavior
– Employee unreasonably failed to take
advantage of any preventative or corrective
opportunities provided by the employer
Affirmative Defense
The defense is lost if a
tangible employment
action, e.g.
demotion or
discharge, occurs
Individual Liability
Under WV law, individuals
may be held liable for
sexual or other forms of
harassment.
 Possible for the employer
to be dismissed and the
employee to remain a
defendant

Investigations
Expect cooperation
 No guarantee of complete confidentiality
 Interviews will be conducted: alleged
victim, alleged harasser, and witnesses
 Evidence gathered/reviewed
 Conclusion will be reached
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Effective Remedial Action

Factors considered by courts
– Gravity of the harm
– Nature of the work environment
– Degree of acquiescence by supervisors
– Promptness of employer response
– Sincerity of employer’s actions
– Extent to which actions prevent further
harassment
Effective Remedial Action
If warranted, appropriate discipline will be
administered.
 Due to privacy concerns, victim may not
learn nature of remedial action/discipline.
 NO RETALIATION!
 Report if harassment continues

Is it harassment?
Moe, Joe, and Jane work in the same department.
Moe subscribes to a new monthly magazine
“Girls with Guns” which he brings to work to
share with Joe.
Jane overhears their
conversations regarding the females featured in
the magazine and regularly sees the magazine
lying around. Jane feels uncomfortable at work
as a result.
What Do You Think?

Joe recently asked his co-worker, Heather, if she’d like
to join him for a drink after work. Heather felt
uncomfortable with the offer and politely declined at
first. Joe has since asked several more times, and has
also started asking Heather if she works out. Heather
feels that Joe’s comments are inappropriate, and she has
asked him to stop, but Joe persists.
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Should Heather report this conduct to her
Manager?
What’s the appropriate response?
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Is it harassment?
Possibly.
It may create a hostile environment. Review the
elements:
unwelcome, severe, pervasive,
offensive to a reasonable person, and alters
work conditions?
It doesn’t matter that Jane is not included in the
conversations.
Is it harassment?
Jack’s locker is next to
Jill’s locker. She adorns
the inside of her door
with pictures of scantily
clad male dancers. Jack
has asked her to
remove the posters, but
Jill refuses because it’s
her personal space.
Is it harassment?
Again, conduct like this can create a hostile
environment. The workplace is not an
appropriate setting to display provocative
materials.
What you might not consider to be
harassing, your co-worker might. The
focus is on how the victim feels and
whether that feeling is reasonable.
Is it harassment?
Burke supervises Sally, Bob, and Jim on the night shift at the
local Taco Tim’s. One night, Burke yelled at Jim for five
minutes, calling him names, for spilling a vat of hot sauce.
He told Sally and Bob who were looking on, “You bastards get
back to work!”
A few days later, after a particularly good night of business,
Burke smacked each of his employees on the rump and told
them, “You sons of bitches did a great job tonight!”
A couple of weeks later, Sally forgot to set the timer on the oven
and burned a half dozen burritos. Burke got angry and
yelled, “You stupid bitch! Can’t you do anything right?” Sally
quit and filed a complaint for sexual harassment.
Is it harassment?
No.
Burke is a jerk, but he’s a jerk to everyone –
male and female alike. Nothing suggests
that Sally was singled out based on her
sex. Still, while these facts may not arise
to the level of illegal harassment, they
may still amount to misconduct subject to
discipline at PUB.
THANK YOU!
What Do You Think?

Mary just started a new job. She noticed that
several of her co-workers seem to enjoy
exchanging “dirty” jokes. Wanting very much to
fit in, she even joined in with some of the jokes
at first. But lately, the conversations have
crossed the line. Mary asks her co-workers to
stop, but they just laugh and continue their
conversation.

Sexual harassment? Does it matter that
Mary joined in at first?
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What Do You Think?

Patricia stops by Bill’s desk to retrieve a
document from him. Bill is not there, but
Patricia notes that his cubicle contains several
off-color cartoons and some sexually explicit
photographs. Bill has never shown these items
to Patricia – she only saw them by chance.
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Sexual Harassment? What if Patricia is a
supervisor?
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What Do You Think?

Same facts as the Patricia/Bill example before,
but instead of Patricia, Steven is the employee
who sees Bill’s pictures.

Does it matter that Steven and Bill are
both men?
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